Rieger v. Welles
| Decision Date | 06 February 1905 |
| Parties | J. H. RIEGER, Appellant, v. G. A. WELLES et al., Respondents |
| Court | Kansas Court of Appeals |
November 23, 1903;
Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Edward C. Wright and James C. Rieger for appellant.
(1) On the undisputed facts plaintiff was entitled to recover. The lease contained a covenant to pay the rent but contained no covenants on the part of the lessor. The defendants signed the lease, accepted possession of a part of the leased premises, knowing that Crowe was in possession of the other and smaller part. This agreement on their part waived the full performance of any implied covenant on the part of the plaintiff for full possession of the property. Prior v Kiso, 81 Mo. 249; R. S. 1889, sec. 6371. (2) The lease contained an express covenant to pay rent and from such express covenant nothing will release the tenant but an eviction, unless the tenant was otherwise legally entitled to quit possession, or the landlord accepts another person as tenant. Churchill v. Lammers, 60 Mo.App. 244; Bailey v. Wells, 8 Wis. 141; Gardner v Keteltos, 3 Hill (N. Y.) 330; Kelley v. Clancy, 15 Mo.App. 519; Jones v. Barnes, 45 Mo.App. 590; Whiston v. McCarthy, 32 Mo.App. 430; Ward v Krull, 49 Mo.App. 449. (3) The exclusion of the lease between Rose and the defendants was reversible error. The defendants did take possession of the whole premises and this lease goes to show that the eviction claimed was not real but fanciful. Ouster from possession is not alone sufficient to make the landlord responsible; it must further appear that the ouster was through the landlord and that the tenant dissented at the time. Perry v. Wall, 68 Ga. 70; Odgen v. Sanderson, 3 E. D. Smith 166.
Porterfield, Sawyer & Conrad for respondents.
(1) The lessor cannot recover against his lessee where he has not put the lessee in possession of the leased premises. Rent is something given by way of compensation to the lessor for the use of the land, and, if any act or omission of the lessor prevents the lessee from using the land at the time and in the manner provided in the lease, the lessor cannot recover rent. Taylor on Landlord and Tenant (8 Ed.), sec. 176; Clark v. Butt, 26 Ind. 236; Coe v. Clay, 5 Bing. 440; Jenks v. Edwards, 11 Exch. 774; Hughes v. Wood, 50 Mo. 350; Hay v. Cumberland, 25 Barb. (N. J.), 594; Smith v. Thurston, 19 Mo.App. 48; 1 Taylor on Landlord and Tenant (8 Ed.), sec. 377; Subway Co. v. St. Louis, 69 S.W. 294; Jackson v. Eddy, 12 Mo. 209; Kean v. Kolkschneider, 21 Mo.App. 538; Tunis v. Grandy, 22 Gratt. (Va.) 109; Spencer v. Burton, 5 Blackf. (Ind.), 59. (2) It was the duty of the appellant to deliver possession of the leased premises to the respondents at the time fixed in the lease for the beginning of the term. Taylor on Landlord and Tenant (8 Ed.), sec. 176; Hay v. Cumberland, 25 Barb. (N. J.) 594; 12 Am. and Eng. Ency. of Law, 686, 696; Kean v. Kolkschneider, 21 Mo.App. 538; Smith v. Thurston, 19 Mo.App. 48; Reed v. Reynolds, 37 Conn. 469; McClurg v. Price, 59 Pa. 420; Spencer v. Burton, 5 Blackf. (Ind.), 59; Coe v. Clay, 5 Bing. 540; Hughes v. Wood, 50 Mo. 350. (3) If the landlord cannot put the lessee into possession of all the premises described in the lease, the lessee will be justified in abandoning the whole lease. Smith v. Thurston, 19 Mo.App. 58; Taylor on Landlord and Tenant (8 Ed.), sec. 177; Hays v. Cumberland, 25 Barb. 594; 12 Am. & Eng. Ency. of Law (1 Ed.), 686, 696; Kean v. Kolkschneider, 21 Mo.App. 538; Prior v. Kiso, 81 Mo. 249; Reed v. Reynolds, 37 Conn. 469; McClurg v. Price, 59 Pa. 420. (4) The fact that the lessees went into possession of part of the room, did not affect their right to rescind the lease, when they found that they could not get full possession, as provided in the lease. Taylor on Landlord and Tenant (8 Ed.), secs. 176 and 177; Hay v. Cumberland, 25 Barb. 594; 12 Am. and Eng. Ency. of Law (1 Ed.), 686, 696; Jackson v. Eddy, 12 Mo. 132; Smith v. Thurston, 19 Mo.App. 48; Kean v. Kolkschneider, 21 Mo.App. 538; Reed v. Reynolds, 37 Conn. 469; McClurg v. Price, 59 Pa. 420.
Action for rent. The plaintiff was the owner of a storeroom which was divided into two rooms, Nos. 1028 and 1028 1/2 on Union avenue in Kansas City. On September 17, 1898, the Heim Brewing Co. occupied the former of these rooms for storage purposes under some kind of an agreement with the plaintiff. One Crowe occupied the latter under a lease expiring on October 1, 1898. On the said 17th day of September the plaintiff and defendants entered into a written lease by the provisions of which the former demised to the latter said storeroom for the term of five years at a rent reserved of one hundred and seventy-five dollars per month, the term to begin on October 1, 1898. It appears that Crowe as well as defendants were what is commonly known as "ticket brokers." The testimony of the plaintiff was that before the making of the lease to the defendants, Crowe came to him--plaintiff--saying that his business had not been profitable and that he would like to remain in possession until after the fall festivities--some twenty days beyond the date of the expiration of his lease--but that he--plaintiff--had refused to grant his request.
It appears that on the same day the lease was executed and immediately thereafter the plaintiff wrote a notice to Crowe and delivered it to the defendants to be by them delivered to Crowe informing him that the storeroom had been leased to defendants and that they had agreed to arrange with him (Crowe), if he so desired, to remain in the room, 1028 1/2, occupied by him on the same terms that he was then paying. This notice the defendants caused to be delivered to Crowe.
On the same day, but after the execution of the lease, the defendants also entered into a written stipulation to the effect that as they had entered into said lease with plaintiff they thereby agreed to allow said Crowe to retain possession of said room--1028 1/2--until October 20, 1898, provided he so desired and would pay to them the rent on the first day of that month at the rate of $ 100 per month. It further appears that at the date of the execution of the lease the plaintiff delivered to defendants the keys to the said storeroom.
The Heim Brewing Co. vacated room 1028 during the latter part of September and the defendants went into actual possession of that room. It appears that Crowe declined to avail himself of the privilege accorded him by the defendants in their stipulation supplementing the lease, or to vacate at the expiration of his lease. About the 24th of September the defendants according to their own testimony were informed by Crowe that he would not avail himself of the privilege accorded to him by the stipulation to the lease but that he intended to continue his occupancy through the coming month of October. With this knowledge the defendants on the first day of October went to plaintiff and paid the $ 175 rent required by the lease for that month. A few days later on, the defendants complained to plaintiff that Crowe was still in possession, and also requested the plaintiff to bring a suit for the recovery of the possession; and to this request the latter declined to accede, insisting that it was the duty of defendants to bring such suit. On the 7th of October the plaintiff brought his suit of unlawful detainer against Crowe. For one cause and another the suit dragged along until plaintiff dismissed it, Crowe in the meantime having vacated the room. The plaintiff testified that according to his understanding the forcible detainer suit was brought by his attorney at the instance of the defendants; that he did not think that Crowe was his tenant for the reason defendants had told him that as they had a five years' lease that they would put him (Crowe) out if he did not avail himself of the stipulation supplementing the lease and pay the rent.
On October 22, before the plaintiff dismissed the unlawful detainer suit, the defendants gave plaintiff notice that they had rescinded the lease because he had not delivered the possession of the storeroom to them as he was bound to do under the lease. They then vacated the room and refused to pay further rent. The cause was tried before the court without the aid of a jury. It found for the defendants. It is impossible to tell upon what theory the cause was determined for the defendants since no declarations of law were requested or given outside of that of a peremptory character refused for plaintiff.
When the defendants entered into the lease they knew that Crowe was in the possession of one room--1028 1/2--under a lease that would not expire until October 1, 1898, and by their supplementary stipulation they agreed that he might remain until November following if he so desired on payment of certain rent. They were put in possession of 1028 on the 24th of September preceding the day named in the lease on...
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